Romanian Judges’ Forum on modifying the recruitment system of magistrates

The Minister of Justice proposes to review the “laws of justice”, in the following sense:

– Candidates must be physically and psychologically apt to serve as magistrate;

– Candidates must be at least 30 years of age;

– Candidates must have at least 5 years of effective employment in one of the legal professions regulated by law;

– The admission examination for direct entry into the magistracy, with a 5-year seniority in other legal professions is removed;

– The admission examination to the NIM (National Institute of Magistracy) will be announced at least 6 months before the date set; – it is currently announced 60 days before the date set;

– Justice trainees will benefit from the reimbursement of learning materials;

– Justice trainees will receive free accommodation in NIM’s accommodation facilities;

– Legal provisions on incompatibilities and interdictions of judges and prosecutors will also apply to justice trainees;

– Justice trainees will have the right to be reimbursed for the rent up to a maximum of 50% of the amount due under this title to magistrates in case there are not enough free places for accommodation in NIM facilities;

– After the completion of the NIM courses, the justice trainees need to pass a graduation exam which verifies the acquirement of the knowledge, skills and abilities necessary to perform the function of judge or prosecutor, as well as a psychological test;

– Changes are suggested regarding the competence of cases that can be assigned to trainee judges, both in civil and criminal matters;

– The trainee judges also attend court hearings with other types of causes than those provided in paragraph (1), by rotation, to the judges’ panels of the court composed of definitive judges established by the president of the court. In the cases in which he / she is assisting, the trainee judge draws up a consultative report on the case and may draft the decision at the request of the chair of the panel.

As a first observation, it must be said that this idea was not publicly debated in the previous rounds of discussions, from 2016 until today, being a newly presented idea.

Apparently, these measures can be viewed with goodwill – who does not want a mature and well-prepared magistrate? But at a closer analysis it must be noticed that they will have the effect of destroying the NIM’s performance system and, in the medium term, lowering the level of training both within the institute and within the magistracy institution.

Thus, the current system allows the presentation of the best-prepared students of each generation, of the valedictorians at the entrance examination at the Institute.

This ensures both a high level of professionalism within the magistracy and an increased exigence, and justifies the existence of the Institute as an elite entity meant to prepare the magistrates.

In the proposed system, this would not be possible.

Valedictorians will naturally choose other legal professions and after reaching the age of 30, assuming they are proficient at their jobs (as lawyer, being a notary public etc.), they will have no reason to look to NMI (INM).

For this reason, the pool of candidates is expected to suffer a decrease in terms of their level of preparation as most of them would probably be jurists merely on paper (given the current state of legal affairs, this is impossible to deny), candidates who will have failed in other legal professions.

In time, after repeated admission exams will have failed to find suitable candidates for all the vacant positions, this fact will lead to the decrease in the level of difficulty of exams, which in turn will result in a pool of magistrates that are less well prepared.

Of course, there will also be exceptions as perhaps some well-prepared candidates would be found but the trend will be the one previously explained.

If the current system can be blamed for certain aspects and, generally, in public, it is said that there is a lack of maturity, this shortcoming can be remedied through other mechanisms, through the extension of the initial period of training at the Institute, through the diversification of the training activities (for instance, in the Netherlands two of the other legal professions require a mandatory 2-year period of training), through the amendment of their jurisdiction for the first years after their permanent appointment (for example, they would be precluded from adjudicating criminal cases or family law disputes where the need for social experience is discernible) etc.

Additionally, in the current system, given that candidates graduate from law school at the age of 22-23 and the NMI (INM), including the training period, lasts for 3 years, it follows that, in fact, a magistrate is effectively starting his work on cases at the age of 27, should (s)he indeed be admitted on the first attempt.

 

Keeping the competence of the Magistrate to judge the technical areas in his first three years of career (contravention complaints, for example) could have the same effect as that which it intends the proposals examined, without however upset the system.

A final reason for which the analyzed proposal will not operate is that the situation is different in Romania, in comparison to the Western countries, where the entry in the Magistracy is done later.

Thus, in other Member States with a consolidated democracy, the receipt of the Magistracy represents a natural course of what was called in the Roman Empire “the road of honor”, a normal step in the professional career, either to return the society a part of the benefits that have been offered, either to continue to build the career in the service of the justice. In those countries, however, the amount of work of a Judge is much smaller, compared to the amount of work of a Romanian Judge. Also, there are necessary – we are saying this as directly as possible – personal sacrifices, including those of physical nature, the resistance to stress and to public attacks on the profession. These downsides have been compensated for the moment with the abnegation of young people who have sought and found their vocation, especially because the reform presumed, among other things, attracting those who have graduated from the faculty of law after the Revolution in 1989.

The proposal of the Justice Department is not based on a study drawn up by the independent psychologists or a sociological survey, to take account of the specific context of our country, based on the statistics and partial objectives (either at the level of courts of medium level), in which to consider issues such as:

– checking the results of the evaluations of periodic training, to see if they are weaker in the case of the magistrates under the age of 30 years to receive in the profession, or who have not had the age of 5 years in another legal profession;

– checking the number cassations or amendments of judgments, in order to observe if the ratio is greater in the case of the magistrates under the age of 30 years or of those who had at least 5 years of professional experience in another legal field;

– Checking the grades, obtained from the promotion exams, according to the specified criteria, to indicate if there is a deficiency caused by the lack of “experience” (the exams would check both theoretical and practical abilities);

– checking irregularities, disciplinary action or conduct, for the same purpose, considering that they cover the relationship with the lawyers, the citizens, the court;

 

The Proposal of the Justice Minister is not based on a prior opinion of the Scientific Council of the National Institute of Magistracy or an impact assessment regarding human resources, which takes account of:

– The number of vacancies in the judiciary (judges and prosecutors);

– The number of additional posts, aiming to complete the implementation of the new Codes or of the public procurement laws, for example;

– The necessity of adding new jobs, considering the anticipated increase of the level of the activity (for example, because of the decision of The Constitutional Court of Romania relating to the threshold in Appeals);

– The number of the posts that after the normal evolution of the removal from office of the magistrates but also due to the wave of retirements this decade will be vacancies;

– The hindering of the promotion system due to the suggested changes (the increase of the effective required seniority), which will be affecting the professional mobility toward higher Courts;

– The low number of the candidates for direct admission to Magistracy even now (having 5 years of seniority in any legal profession), this would be the only allowed category for the Admission to the National Institute for Magistracy, according to the Justice Minister (with an additional condition: the age of thirty years old);

– The weight of the recruitment by examination (NIM or direct admission), related to the subject difficulties over the last years, preserving an exacting standard;

– The possibility of making an opinion poll on the occasion of the admission examination for NMI (INM) and Direct admission in magistracy from 3rd of September 2017, that sets out the extent that the proportion of those who meet the conditions, and also the proportion of those who indicated their intention to participate to an admission system such as the Ministry did propose.

To the extent that the problem of lack of experience would be correctly identified through studies and polls, then its causes and solving methods are not the same, not the simplistic ones which, in addition to the fact that they are shattering the dreams of generations of Law Graduates, well prepared, will also lead to a decrease of prestige of NMI, influence and relevance, but also to a mitigation in the long term, of the level of training for both, justice trainees and magistrates – afterwards.

 Dragoș CĂLIN